Upper Tribunal (Immigration and asylum chamber), 2018-07-23, JR/9682/2017
| Jurisdiction | UK Non-devolved |
| Date | 23 July 2018 |
| Published date | 28 September 2018 |
| Hearing Date | 18 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/9682/2017 |
JR/9682/2017
JR/9682/2017
Upper Tribunal
Immigration and Asylum Chamber
Heard at Field House
On 17 and 18 May 2018
Before
Upper Tribunal Judge Grubb
Upper Tribunal Judge Blum
Between
The Queen (on the application of MS)
(a child by his litigation friend MAS)
(anonymity direction made)
Applicant
v
Secretary of State for the Home Department
Respondent
Appearances:
For the Applicant: Ms C Kilroy and Ms M Knorr instructed by Bhatt Murphy Solicitors
For the Respondent: Mr G Lewis instructed by Government Legal Department
Judgment
UT Judge Grubb:
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This is the judgment of the Tribunal to which both members of the Panel have substantially contributed.
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The Tribunal has made an anonymity direction and the applicant will be referred to throughout as “MS”. The applicant’s claimed brother will be referred to as “MAS” and other relevant witnesses are similarly anonymised.
INTRODUCTION
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The underlying issue in this challenge is whether MAS, who is lawfully present in the UK, is the brother of MS, an unaccompanied minor who has made an asylum application in France. If MS is the sibling of MAS then, under Council Regulation (EU) No 604/2013 (the "Dublin III Regulation"), the UK has responsibility for determining MS’s asylum claim, as long as this is in his best interests.
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Arising from this underlying issue are other issues concerning the proper interpretation of the Dublin III Regulation, and in particular, whether the UK has a duty of investigation once it receives a request from the French authorities to take charge of MS’s asylum application, and the scope of any such duty. This in turn raises issues concerning the scope and power of the Tribunal to order the respondent to use his best endeavours to obtain DNA evidence, and the scope of the Tribunal’s reviewing power.
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Some of these issues were considered by the Upper Tribunal (the “UT”) in R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin III Regulation – investigative duty) IJR [2016] UKUT 00231 (IAC) (McCloskey J and UTJ Peter Lane, as he then was) (hereinafter “MK”). The respondent contends that this decision was wrongly decided and should not be followed.
BACKGROUND AND PROCEDURAL HISTORY
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We can set out the background and procedural history to this claim relatively briefly.
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The applicant is a national of Afghanistan. His given date of birth is 1 January 2001. He is, therefore, now 17 years old. The applicant left Afghanistan in 2016 and arrived in France in late 2016. He initially lived in a makeshift camp in Dunkirk. The camp burnt down in April 2017. Thereafter, the applicant was transferred to a children’s centre in Roubaix, and is now residing in an accommodation centre in Armentieres.
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MAS, who it is accepted is an Afghan national, entered the United Kingdom on 24 May 2006. He was granted indefinite leave to remain on 21 August 2013. His partner (“MOS”) is a Polish national. They have two children, twins aged two years old, who are British citizens. In addition, MOS has two other children, aged 12 years and 8 years, who live with them. MAS and MOS married on 12 March 2018.
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The applicant contends that MAS is his older brother. Since January 2017 he has been seeking to join MAS in the UK in accordance with the Dublin III Regulation.
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MS made an asylum claim in France on 13 June 2017. Accepting that MS had an older brother in the UK, on 19 June 2017 France made a ‘take charge request’ (“TCR”) to the UK under Art 8(1) of the Dublin III Regulation.
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On 27 July 2017 the respondent refused the TCR. The respondent was not satisfied that MAS was the applicant’s brother as he claimed.
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On 9 August 2017 France made a second TCR. On 21 August 2017, the respondent again refused the TCR on the basis that the applicant had not established he was MAS’ brother.
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The applicant’s solicitors send a pre-action protocol (“PAP”) letter on 3 November 2017 challenging the respondent’s decisions of 27 July 2017 and 21 August 2017. Additional supporting evidence and material was included.
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On 10 November 2017, the respondent responded to the PAP letter maintaining her decisions to refuse the TCRs. At that time no consideration was given to the further evidence and material that had been submitted on the applicant’s behalf.
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On 13 November 2017, the applicant’s solicitors wrote requesting that the respondent consider the material and reconsider his decision not to accept the TCR.
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On 20 November 2017, the applicant lodged these judicial review proceedings challenging the respondent’s decisions not to accept the TCR requests. The applicant sought various orders including orders quashing the decisions of 27 July 2017 and 21 August 2017, a declaration that the respondent’s refusal to admit MS was unlawful and a mandatory order requiring the respondent to admit MS to the UK, to facilitate DNA testing and to remake the decision whether to accept the TCR.
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On 20 November 2017, UT Judge King ordered that the permission application be considered at an oral hearing.
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On 7 December 2017, UT Judge Canavan refuse an application made by the applicant to list the application as a rolled-up hearing.
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On 14 December 2017, the respondent filed an Acknowledgment of Service and Summary Grounds of Defence.
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F ollowing an oral hearing on 21 December 2017, UT Judge Freeman granted the application permission to bring these proceedings. He did so in the following terms relying upon MK:
“arguably…the respondent’s investigative duties under the Dublin Convention required her to pursue with the French authorities the possibility of DNA testing being carried out by this applicant solicitor’s, if necessary facilitating obtaining any necessary order by a French judge.”
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UT Judge Freeman also made a number of specific case management directions relating to disclosure (which the applicant’s representatives had expressed concerns over) and, again following MK, specifically that
“The Secretary of State shall (a) take all reasonable steps and use her best endeavours to facilitate and secure the DNA testing of this applicant and shall liaise and communicate as appropriate with the relevant French authorities in this exercise, which must be completed by 2 February 2018, and (b) make a further decision by 16 February.”
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The latter date was varied to 23 February 2018 by a consent order sealed on 31 January 2018.
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There then followed correspondence exchanges between parties’ legal representatives. An application was made by the respondent to vary UT Judge Freeman’s order specifically in relation to the obtaining of DNA testing of the applicant in France. There was also an application relating with the linkage of this case with another, about which we need to say no more, other than that the cases were not linked at the time of the hearing before us.
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On 12 March 2018 the respondent made a further decision, as contemplated by UT Judge Freeman’s order of 21 December 2017 as subsequent varied, again refusing France’s TCR in respect of the applicant on the basis that he was still not satisfied that MS and MAS are brothers.
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On 23 March 2018, the respondent filed Detailed Grounds of Defence.
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On 6 April 2018, the applicant applied for permission to amend his claim to include a challenge to the decision of 12 March 2018.
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Following a case management hearing on 16 April 2018, UT Judge Lindsley granted permission for the claim to be amended additionally to challenge the decision of 12 March 2018. The judge also gave permission to the applicant to rely on further evidence including an additional expert report.
THE CHALLENGED DECISIONS
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In these proceedings, the applicant challenges three decisions rejecting the TCRs made by France dated: (1) 27 July 2017; (2) 21 August 2017; and (3) 12 March 2018. We will take each of these decisions in turn.
Decision letter of 27 July 2017
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The Respondent’s decision of 27 July 2017 was reached following France’s TCR dated 19 June 2017. The decision first sets out the material which has been considered and which was, as we understand it, forwarded pursuant to the Dublin III Regulation regime by France to the respondent. The evidence was:
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Take charge request 19 June 2017
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Copy of minor’s fingerprint
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Copy of consent letter from minor
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Copy of UK Residence permit
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Copy of Afghan passport
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Copy of utility bill
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Copy of family tree [diagram]
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The decision then continues:
“No evidence has been provided to demonstrate the link between the above and his brother. Therefore, it is not accepted as a familial link has been shown. In an effort to initiate the family link the UK has consulted the above’s claimed relation’s previous Home Office submissions. Regrettably, there is no mention of siblings and the names of the parents of the above’s claimed brother are different. Consequently, I regret to inform you that your take charge request is...
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